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Code Wars

10 Years of P2P Software Litigation

Rebecca Giblin

With reference to US, UK, Canadian and Australian secondary liability regimes, this insightful book develops a compelling new theory to explain why a decade of ostensibly successful litigation failed to reduce the number, variety or availability of P2P file sharing applications – and highlights ways the law might need to change if it is to have any meaningful effect in future.
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Chapter 5: Post-Grokster Fallout

Rebecca Giblin


The P2P world changed rapidly after the Supreme Court handed down its decision. Like Grokster Ltd, the formerly defiant owners of the Bearshare and eDonkey P2P services took the opportunity to hastily settle their disputes with rights holders.1 Sharman Networks, which had also been a party to the Grokster litigation (though not involved in the summary judgment application that was appealed to the Supreme Court), also finally acted to settle the lawsuits in which it was enmeshed in both the US and Australia – its parallel story is recommenced in later chapters. These old-school P2P providers, which had each engaged in the same kind of liability-attracting behavior as the Grokster defendants, clearly saw the writing on the wall.

The last significant holdout from the bad old days on the P2P frontier was Mark Gorton, who, with the assistance of various corporate structures, controlled the LimeWire P2P file sharing application. At the time of its launch in August 2000, LimeWire utilized the Gnutella protocol, operating via the same fully decentralized method as Morpheus (described above). However, the scaling problems and inefficiencies of that system soon led to its adopting a partially decentralized network topology closely analogous to that utilized by FastTrack clients such as Grokster. As described above, both of these technologies were deliberately designed to fall outside the strict contours of the existing law by exploiting the physical world/software world divide. As it turned out, this strategy for avoiding liability worked for longer than Gorton himself probably...

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